Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence…

Facts may indeed be stubborn things, but they are also subject to the vicissitudes of time and nature’s forces. Our thinking about those facts, and their significance to us, is often refracted through the lenses of culture, cognition, and bias. As our understanding of our physical world alters; as records are broken or measurements exceeded; as times, laws, borders, and customs change; our encyclopedias and other reference books, along with our memories, demand constant updating.

In a thought-provoking essay in the New York Times Sunday Book Review, author Geoff Nicholson pondered “The Joy of (Outdated) Facts“, a meditation on the mutability of factual information and the changing nature of human knowledge. Nicholson observes,

[B]ooks of facts always display localized preferences, cultural values, sometimes straightforward prejudices. My “New American Cyclopaedia” (1872) tells me that in 1855 there were 25,858 people in New York who could neither read nor write, and 21,378 of them were Irish. This may well have been true, but why exactly did it need to be emphasized? Well, I think we might hazard a guess.

With hindsight, we can always see through the dubious “authority” of such historical sources. Few things look as unstable as the rock-solid certainties of previous ages. Since encyclopedias are supposed to be balanced and disinterested, the bias often seems even more naked…

Of course, ideas of what’s worth knowing, and even what’s interesting, are constantly changing: The fascination with trigonometrical formulas certainly seems to have receded. But in a world where ever fewer people care about, or even understand the nature of, fiction, where readers and viewers demand facts and reality, outdated books of supposedly impartial information can be a useful reminder of just how slippery facts are — as unreliable as the most unreliable narrator.

Also pondering the phenomenon of the mutability of factual knowledge is Mesofacts, a web site devoted to facts that change slowly over time – whether the population of the world or the number of new elements added to the Periodic Table since you graduated from high school.

To gain our notice, facts need human attention – to collect and record, to weigh or measure, to determine significance, meaning, or connection to other facts. They must enter the machinery of perception – where sometimes they transform themselves into something else entirely, not an objective reflection of what is but a mirroring of who we are.

In fact, I wonder what John Adams would have made of a Supreme Court decision like Scott v. Harris, a case that reveals the permeable boundary between the objective and the subjective. A police officer rammed the car of a fleeing suspect, who was seriously injured and subsequently filed suit alleging that the use of excessive force resulted in an unreasonable seizure under the Fourth Amendment. Significantly, a video camera captured the entire chase on film. In an 8-1 decision, according the video evidence great weight, the Supreme Court held in favor of the police officer, determining that the officer’s actions were reasonable, and that the officer was entitled to summary judgment. The lone dissenter, Justice Stevens, insisted that whatever conclusions were to be drawn from the video should be left to a jury to determine.

The video which recorded the entire car chase has become the subject of much debate, as well as the focus of a study by a group of legal scholars. Their results suggest that what we see when we view that video may be the product of cultural, ideological, and other forces. A lone Supreme Court dissenter, Justice Stevens,

“Just the facts, ma’am,” as Jack Webb’s character, police detective Joe Friday, used to say in the U.S. television series, Dragnet. But the facts may be culturally contingent, temporary, or long past their expiration date. In fact, some facts may not be facts at all – much like Joe Friday’s catchphrase, imbedded in our cultural memory but never in fact uttered.

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“I’m telling you that this works,” the Republican candidate explained. “You know, before we all started having health care, in the olden days, our grandparents, they would bring a chicken to the doctor. They would say, ‘I’ll paint your house.’ I mean, that’s the old days of what people would do to get health care with your doctors. Doctors are very sympathetic people. I’m not backing down from that system.”

Some enterprising wag has helpfully created a handy online calculator that enables physicians and patients to determine the proper chicken exchange rate for common medical procedures.

Lawyers are frequent targets for humor, the butt of countless stale jokes. With the exception perhaps of “Wedding Crashers“, conflict resolution professionals so far have been spared the ribbing that comedians, cartoonists, and screenwriters so often heap on our brothers and sisters at the bar.

Is this a sign of the impending apocalypse? Hardly. As one anonymous commenter on Tom’s site observed, “Just getting the word ombudsman in cartoons raises awareness of our profession.” Or, as Oscar Wilde once put it, “The only thing worse than being talked about is not being talked about.”

Now, stepping into the marital fray is comedian Jerry Seinfeld, who will be hosting “The Marriage Ref“, a game/reality TV show in which bickering couples will submit their disputes to nonbinding arbitration before celebrity guests who will “comment, judge and decide who’s right and who’s wrong in real-life disputes between real-life spouses.”

It’s happened at some point to anyone who drives a motor vehicle. You inch slowly into the intersection, cautiously looking in all directions to make sure that the right of way is clear. Convinced that you can now safely make your turn, you pull forward. Suddenly, out of nowhere, its horn blaring, appears a car, swerving to avoid you. In a panic, your heart pounding loudly in your ears, you slam on your brakes, wondering how in the world you could have missed that car.

In the February 2010 issue of Harper’s Magazine is an essay entitled “The Serfdom of Crowds”, excerpted from You Are Not a Gadget: A Manifesto, the latest book by computer scientist, web guru, and author Jaron Lanier. You Are Not a Gadget serves as a bracing rebuttal to the loud hallelujah chorus of praise for all things internet-related. Of social networking Lanier writes,

An individual who is receiving a flow of reports about the romantic status of a group of friends must learn to think in terms of the flow if it is to be perceived as worth reading at all. Am I accusing all those hundreds of millions of users of social-networking sites of reducing themselves in order to be able to use the services? Well, yes, I am. I know quite a few people, most of them young adults, who are proud to say that they have accumulated thousands of friends on Facebook. Obviously, their statements can be true only if the idea of friendship is diminished.

These words pulled me up short. Minutes before reading them, I’d received a request on LinkedIn for a recommendation from one of my contacts. When I clicked on their profile I realized that I had no idea who they were or how I had come to connect with them. At one time accepting their invitation to connect on LinkedIn must have seemed like a good idea, because here they were in my list of connections, and there they were asking me for my recommendation.

Let’s pause there for a moment and consider what LinkedIn has to say about accepting or responding to invitations:

LinkedIn believes that when it comes to building your network, it is all about the quality of the connections and not about the quantity of connections. Your network should be centered on quality of knowledge, resources, skills and advocacy that LinkedIn can help unlock.

…Invitations are a great option to ask people to join your network. When sending Invitations, ensure that you know and trust the person you are extending the Invitation to. This is generally someone you have worked with, collaborated on projects with or maybe attended school with. These will be people that can recommend you to others and will become your first degree connections.

Looking over my list of contacts on LinkedIn, I can honestly say that among them are a few people I don’t know well at all. They are people who’ve perhaps read my blog, followed me on Twitter, or are fellow members of a professional networking site. The basis for these connections at times seems arbitrary, because social media and human nature make it easy to manufacture or claim kinship, whether it’s sharing an alma mater, a profession, a political view, or a hometown. But are all these individuals people I could recommend, based on direct, personal knowledge and with a clear conscience? To be honest: no. Some. But not all.

In the end I declined the request and removed this person from my list of connections. If this person was willing to ask a casual acquaintance to recommend them, then this was someone I did not care to be linked with any longer. But it left me asking, in accepting a LinkedIn invitation without undertaking due diligence, are we devaluing the currency of online social networking?

How many of us stop to weigh the words “it is all about the quality of the connections and not about the quantity of connections” before accepting invitations from strangers to connect? If a business networking site like LinkedIn is to have any worth, it must depend upon principled users. Otherwise the recommendations that LinkedIn urges users to obtain to complete their profile remain suspect.

Readers, do not mistake this post for a rejection of social media by a long-time blogger. I am not denying that social media have value for me – as water cooler, newsstand, and town square. They have led me to substantial, real-world friendships and allowed me to keep in touch with people who matter to me. Nor do I argue that regular, in-person contact is the sole means to establish or sustain a meaningful relationship. Email, Skype calls, instant messages, telephone time, and, yes, messages posted on social networking sites, can nurture collegial ties and friendships across distances great and small.

As worthwhile for some purposes social media may be, their wow-that’s-so-cool impact should not blind us to their obvious limits. Strip away the hype to reveal the teetering house of cards that social networking constructs of our trust. Social media can reduce to parody what is meaningful and valuable about relationships and personal connections. They can lower our standards or overpower our discernment. The entrepreneur or social media expert may be a disbarred lawyer or a convicted felon. It’s hard to tell when the light’s dazzling our eyes. But let’s remember the enduring truth in the aphorism “on the internet nobody knows you’re a dog“.

So long as trust is aspirational not dependably operational, what can any of us do? Two adages come to mind. In the words of the authors of negotiation classic Getting to Yes, “Be trustworthy, not trusting.” And, as a former U.S. president is purported to have once said: “Trust, but verify.”

As for me, I am in the process of drafting a LinkedIn policy, as I did for Twitter (although without the wiseassery). If you have one yourself, tell me about it. What guidelines have you set for accepting or declining invitations, or making or requesting recommendations? I’d welcome hearing from you.

Optical illusions make ideal teaching tools in negotiation and conflict resolution training. They serve as humbling reminders of the unreliability of our senses and the conclusions we draw from the data we perceive. One of my favorite illusions is “Shepard’s Turning the Tables“, which you can view at the web site of Professor Michael Bach of Universitäts-Augenklinik, Freiburg, Germany.

This illusion depicts two tables standing near each other. The tables appear to be of different sizes, one apparently longer and narrower than the other. When you click “Run”, one table top lifts and floats, coming to rest on top of the second table, allowing you to see that the surface areas of the tables are in fact identical and match perfectly. You can reset and replay the illusion again and again.

Amazingly, despite knowing the truth about the dimensions of the table tops, your eyes still see differing sizes and shapes. I invite you to see for yourself. (I must caution those of you whose time is limited: visiting Professor Bach’s site, a collection of 86 jaw-dropping illusions, for only a minute is simply not possible. You’ll find yourself irresistibly drawn from one illusion to the next.)

For those of you interested in influences on perception and cognition, I recommend one article and two videos, all thought-provoking (for those of you viewing at work, please note that a certain four-letter word appears in both videos):

Via The Boston Globe, “Easy = True: How ‘cognitive fluency’ shapes what we believe, how we invest, and who will become a supermodel“. Globe staff writer Drake Bennett describes cognitive fluency as “[o]ne of the hottest topics in psychology today”. He reports that cognitive fluency is “simply a measure of how easy it is to think about something, and it turns out that people prefer things that are easy to think about to those that are hard.” Studies suggest that factors such as rhyming words or font style and legibility of text influence the way we process information, enhancing or hampering our ability to perform tasks or make judgments.

I often find myself wishing I lived in California, if only to be able to regularly attend the magnificent events the Southern California Mediation Association plans and presents each year. These programs showcase the talents and intellectual achievements of some of the greatest thinkers and leaders that the field of conflict resolution can boast.

Reading his presentation, I was moved by the power of Cloke’s words. If you read them, too, no doubt like me you will shake your head with weary recognition as you ponder the elements of demonization, mechanisms of moral disengagement, and the early warning signs of fascism. Alternatively, you will nod with approval as you read about the proposals for change that Cloke lays out – the 12 conflict resolution methodologies, the Mediators Without Borders 12-step program to address conflict systematically, and the personal choices in social change.

But I am also left uneasy, troubled by questions that have haunted me for many months. And I raise these questions now, not in disrespect or to impugn the message that Cloke delivered to mediators this past weekend.

There is no doubt that our inspiring leaders and, yes, our foot soldiers, too, command prodigious skills in negotiation and persuasion. Why then do negotiation and conflict resolution remain in such disrepute here in the U.S.? Why, despite the Ivy League credentials and access to the corridors of power that the best and brightest among us enjoy, have we failed to influence political discourse on American soil? We remain mired in incivility, fallacy, and fear, as daunting problems confound and oppress us, whether health care, climate change, unemployment, or threats to national security.

Negotiate with terrorists? Okay. But first we’d better figure out fast how we can talk with our opponents here at home.

I fear that some readers may believe that I wrote this post in gleeful delight, a mediator taking grim pleasure in diminishing public confidence in lawyers. But this post wasn’t motivated by schadenfreude. Instead, it was intended as wake-up call for my brothers and sisters at the bar.

These statements about lawyers pain me deeply. I’m an attorney myself, and proud to be one, and it hurts to hear them.

Countless attorneys every day do good work for their clients. The great majority of those who practice law are honorable, decent, hard-working people who take their oaths seriously and serve their clients with integrity and competent professionalism. The many attorneys I know personally are the kind of lawyers Atticus Finch would have been proud of.

What troubles me is the increasing number of people who are reporting to me frustrations with lawyers, and the number of people who complain about poor services from their lawyers – lawyers who fail to return calls, who fail to keep clients informed, who treat clients with paternalism not as intelligent adults. I recently spoke with one CEO who complained that his lawyers ignored his explicit wishes and ended up costing him a critical business relationship by escalating and not ameliorating a dispute. I hear these stories with increasing frequency.

For a long time I chalked these gripes up to a few bad apples or even simply urban legend, but these complaints are not going away. My sense now is that there’s a real problem out there. I think these concerns merit our attention and must be treated seriously, and not dismissed as isolated expressions of dissatisfaction by a few uninformed cranks. I do what I can to correct these misperceptions, but this requires a widespread collective effort. We need the efforts of the bar, the judiciary, the legal academy, and bar associations. We need to root out their causes and vanquish them. There’s much at stake – we need the full confidence of the public in the law, its institutions, and its servants.

Eighteen years ago, on a brilliantly sunny day, I attended a Fourth of July barbecue in a pleasant suburb a few miles outside of Boston. I was sitting at an umbrella-shaded table by the pool, watching my son splashing happily in the water with the other kids, when one of the guests nearby turned to me and asked me a question that caught me off-guard. He said, “Why don’t you Jews celebrate the 4th of July?”

“Why in the world would you think we don’t?” I responded (although I will admit that I used much more colorful language than that to convey my astonishment).

It turns out that this guest (a native-born, college-educated American about my age, mind you, not a confused elder or a recently arrived immigrant unfamiliar with U.S. customs) believed that Independence Day was a Christian holiday. There was of course more, but I’ll spare you. Suffice to say that there was no convincing him otherwise; he believed unswervingly in the radio talk show host he’d heard it from. It was, as you might imagine, a wholly unsatisfactory conversation.

I understand fully the impulse that led Frank to respond as he did. Although 18 years have passed, I still recall vividly that exchange at that long-ago party. I remember how the anger seared when I heard his contemptuous “you Jews”. I can still feel the frustration, the stunned disbelief at his willful ignorance and full-bore stupidity.

But a mediator I know asked me the other day if I thought Frank’s response was appropriate. I had to answer no, it wasn’t. Emotionally satisfying on a primal level, yes. Appropriate, certainly not. The last thing we need these days is more insolence, more incivility, more personal attacks. Frank had an opportunity to educate; instead he chose to alienate. Frank may perhaps be unrepentant, but other members of Congress should heed seasoned public facilitator and dialogue and negotiation expert Lawrence Susskind. Blogging at The Consensus Building Approach, Susskind proposes a wholly different approach in his post, “How Should You Respond to the Noisy Health Reform Critics?”

Although Susskind’s post makes good reading, my primary concern is not in getting people to speak civilly to each other. I’d like that, yes. But I’ll leave that for others to ponder.

I’m far more interested in a bigger and more pressing issue, one we must address before we can have discourse that is truly civil: How do we eradicate ignorance? How can we create a better informed citizenry? One that is capable of thinking critically, of relying on reason and logic, of analyzing and evaluating data, and reaching decisions and making judgments based on sound information, not sound bites? In other words, what can we do to improve media literacy among citizens?

Media literacy is the ability to access the media, to understand and to critically evaluate different aspects of the media and media contents an to create communications in a variety of contexts.

Media literacy relates to all media, including television and film, radio and recorded music, print media, the Internet and all other new digital communication technologies. It is a fundamental competence not only for the young generation but also for adults and elderly people, for parents, teachers and media professionals. The Commission considers media literacy as an important factor for active citizenship in today’s information society.

Democracy depends on the active participation of citizens to the life of their community and media literacy would provide the skills they need to make sense of the daily flow of information disseminated through new communication technologies.

Unfortunately, some here in America remain suspicious of “Old Europe” and any of its ideological exports, whether law or policy. But surely (and I say “surely” with only the slightest hint of cynicism) there is nothing controversial about a better educated, well-informed, media-savvy public.